Terms and Conditions

General terms and conditions of delivery and payment issued by the Koninklijke Metaalunie (Dutch organisation of entrepreneurs in small and medium-sized enterprises in the metal industry) referred to as METAALUNIE TERMS AND CONDITIONS, formerly known as SMECOMA TERMS AND CONDITIONS, filed with the registry of the court in Rotterdam on 1 January 2008. Published by the Koninklijke Metaalunie, P.O. Box 2600, 3430 GA Nieuwegein.
Koninklijke Metaalunie

1.1. These conditions apply to all offers made by members of the Royal Metal Union, to all agreements they conclude and to all agreements that may result from this.

1.2. The offeror/supplier is the Metaalunie member that uses these conditions. This is referred to as the contractor. The other party is referred to as the principal.

1.3. In the event of any conflict between the content of the agreement concluded between the client and the contractor and these general terms and conditions, the provisions of the agreement shall apply.

1.4. These terms and conditions may only be used by members of the Royal Metal Union.

2.1. All offers are without obligation.

2.2. If the client provides the contractor with data, drawings, etc., the contractor may assume that these are correct and will base his offer on them.

2.3. The prices stated in the offer are based on delivery ex works, in accordance with Incoterms 2000. The prices are exclusive of sales tax and packaging.

2.4. If his offer is not accepted, the contractor has the right to charge the client for all costs he has incurred in making his offer.

3.1. Unless otherwise agreed in writing, the contractor retains the copyrights and all industrial property rights to the offers made by him, and to the designs, images, drawings, (test) models, software, etc. provided by him.

3.2. The rights to the data referred to in paragraph 1 shall remain the property of the contractor, regardless of whether the client has been charged for the production thereof. This data may not be copied, used or shown to third parties without the prior express written consent of the contractor. The client shall owe the contractor a fine of €25,000 for each violation of this provision. This fine may be claimed in addition to damages under the law.

3.3. The Client must return the data provided to him as referred to in paragraph 1 upon first request within the period set by the Contractor. In the event of a violation of this provision, the Client shall owe the Contractor a fine of € 1,000 per day. This fine may be claimed in addition to compensation for damages under the law.

4.1. The client cannot derive any rights from advice and information that he receives from the contractor if this does not directly relate to the assignment.

4.2. The Client is responsible for the drawings, calculations, designs made by him or on his behalf and for the functional suitability of materials prescribed by him or on his behalf.

4.3. The Client shall indemnify the Contractor against any claim by third parties relating to the use of drawings, calculations, designs, materials, samples, models and the like provided by or on behalf of the Client.

4.4. The client may have the materials that the contractor wants to use examined at his own expense before they are processed. If the contractor suffers damage as a result, this will be at the expense of the client.

5.1. The delivery time and/or execution period are determined approximately by the contractor.

5.2. When determining the delivery time and/or execution period, the contractor assumes that he can execute the order under the circumstances known to him at that time.

5.3. The delivery time and/or execution period will only commence when agreement has been reached on all commercial and technical details, all necessary data, final, approved drawings, etc. are in the possession of the contractor, the agreed (instalment) payment has been received and the necessary conditions for the execution of the order have been met.

5.4. a. If there are circumstances other than those known to the contractor when he determined the delivery time and/or execution period, the contractor may extend the delivery time and/or execution period by the time required to execute the order under these circumstances. If the work cannot be fitted into the contractor’s schedule, it will be carried out as soon as his schedule permits.
b. If there is additional work, the delivery time and/or execution period will be extended by the time required to (have) the materials and components supplied and to carry out the additional work. If the additional work cannot be fitted into the contractor’s schedule, the work will be carried out as soon as the schedule permits.
c. If there is a suspension of obligations by the contractor, the delivery time and/or execution period will be extended by the duration of the suspension. If continuation of the work cannot be fitted into the contractor’s schedule, the work will be carried out as soon as the schedule permits.
d. In the event of unworkable weather, the delivery time and/or execution period will be extended by the resulting delay.

5.5. Exceeding the agreed delivery time and/or implementation period shall in no event entitle you to compensation, unless this has been agreed in writing.

6.1. Delivery takes place ex works, in accordance with Inco-terms 2000; the risk of the item is transferred at the moment that the contractor makes it available to the client.

6.2. Notwithstanding the provisions of the previous paragraph, the client and the contractor may agree that the contractor will arrange for the transport. The risk of storage, loading, transport and unloading also rests with the client in that case. The client may insure itself against these risks.

6.3. If the item is traded in and the client continues to use the item to be traded in while awaiting delivery of the new item, the risk of the item to be traded in remains with the client until the moment that he has placed it in the possession of the contractor.

7.1. An increase in cost-determining factors arising after the conclusion of the agreement may be passed on by the contractor to the client if the performance of the agreement has not yet been completed at the time of the increase.

7.2. The Client is obliged to pay the price increase as referred to in paragraph 1 at the same time as payment of the principal sum or the next agreed payment term.

7.3. If goods are supplied by the client and the contractor is prepared to use them, the contractor may charge a maximum of 20% of the market price of the goods supplied.

8.1. The Contractor has the right to suspend the performance of his obligations if he is temporarily prevented from fulfilling his obligations due to circumstances that could not have been foreseen when the agreement was concluded and that are beyond his sphere of influence.

8.2. Circumstances that could not have been foreseen by the Contractor and that are beyond its sphere of influence include, but are not limited to, the circumstance that suppliers and/or subcontractors of the Contractor do not or do not meet their obligations in a timely manner, the weather, earthquakes, fire, loss or theft of tools, the loss of materials to be processed, roadblocks, strikes or work stoppages and import or trade restrictions.

8.3. The Contractor is no longer entitled to suspend if the temporary impossibility of performance has lasted for more than six months. The agreement may only be terminated after this period has expired and only for that part of the obligations that have not yet been fulfilled. In that case, the parties are not entitled to compensation for the damage suffered or to be suffered as a result of the termination.

9.1. The Client must ensure that all permits, exemptions and other decisions necessary to carry out the work are obtained in a timely manner.

9.2 The price of the work does not include:
a. the costs of groundwork, pile driving, cutting, breaking, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair or other construction work;
b. the costs of connecting gas, water, electricity or other infrastructure facilities;
c. the costs of preventing or limiting damage to items present on or near the work;
d. the costs of removing materials, building materials or waste;
e. travel and accommodation expenses.

10.1. Changes to the work will in any case result in additional or reduced work if:
a. there is a change in the design, specifications or budget;
b. the information provided by the client does not correspond with reality;
c. the estimated quantities deviate by more than 10%.

10.2. Additional work will be calculated based on the value of the price-determining factors that apply at the time the additional work is performed.
Less work will be settled based on the value of the price-determining factors that applied at the time the agreement was concluded.

10.3. If the balance of the reduced work exceeds that of the additional work, the contractor may charge the client 10% of the difference in the balances at the final settlement. This provision does not apply to reduced work that is the result of a request from the contractor.

11.1. The Client shall ensure that the Contractor can carry out his work undisturbed and at the agreed time and that he has access to the necessary facilities when carrying out his work, such as:
– gas, water and electricity;
– heating;
– lockable dry storage space;
– facilities prescribed under the Working Conditions Act and regulations.

11.2. The Client is liable for all damage, including as a result of loss, theft, burning or damage, to property of the Contractor, the Client and/or third parties, such as tools and materials intended for the work, which are located at the location where the work is carried out or at another agreed location.

11.3. If the client fails to fulfil its obligations as described in the previous paragraphs and this causes a delay in the execution of the work, the work will be carried out as soon as the client fulfils all its obligations and the contractor’s planning permits this. The client is liable for all damage resulting from the delay for the contractor.

12.1. The work is considered to have been completed when:
a. the client has approved the work;
b. the work has been put into use by the client. If the client puts part of the work into use, that part is considered to have been completed;
c. the contractor has notified the client in writing that the work has been completed and the client has not indicated in writing within 14 days of the notification whether or not the work has been approved;
d. the client does not approve the work on the grounds of minor defects or missing parts that can be repaired or delivered within 30 days and that do not prevent the work from being put into use.

12.2. If the client does not approve the work, he is obliged to notify the contractor of this in writing, stating the reasons.

12.3. If the client does not approve the work, he will give the contractor the opportunity to deliver the work again. The provisions of this article will then apply again.

12.4. The Client shall indemnify the Contractor against claims by third parties for damage to undelivered parts of the work caused by the use of parts of the work that have already been delivered.

13.1. The Contractor is liable for damage suffered by the Client that is the direct and exclusive result of a shortcoming attributable to the Contractor. However, only damage against which the Contractor is insured or should reasonably have been insured will be eligible for compensation.

13.2. If it is not possible for the contractor at the time of entering into the agreement or not possible under reasonable conditions to take out insurance as referred to in paragraph 1 or to renew it thereafter under reasonable conditions, the compensation for the damage will be limited to the amount charged by the contractor for the current agreement (excluding VAT).

13.3. The following are not eligible for compensation:
a. business damage, including, for example, stagnation damage and loss of profit. The client must, if desired, insure itself against this damage;
b. supervisory damage. Supervisory damage includes, among other things, damage caused by or during the execution of the work to items being worked on or to items located in the vicinity of the place where the work is being carried out. The client must, if desired, insure itself against this damage;
c. damage caused by intent or deliberate recklessness of assistants or non-managerial subordinates of the contractor.

13.4. Contractor is not liable for damage to material supplied by or on behalf of client as a result of improper processing. At the request of client, contractor will perform the processing again, using new material supplied by client at client’s expense.

13.5 The Client shall indemnify the Contractor against all claims by third parties due to product liability as a result of a defect in a product supplied by the Client to a third party and which (partly) consisted of products and/or materials supplied by the Contractor.

14.1. The Contractor guarantees the proper execution of the agreed performance for a period of six months after delivery.

14.2. If the agreed performance consists of acceptance of work, the contractor guarantees the soundness of the construction delivered and the materials used for the period referred to in paragraph 1, provided that he was free to choose them.

If it appears that the delivered construction and/or the material used are not sound, the contractor will repair or replace them. The parts that are repaired by the contractor or replaced by the contractor must be sent to the contractor carriage paid. Disassembly and assembly of these parts and any travel and accommodation expenses incurred will be borne by the client.

14.3. If the agreed performance consists (partly) of the processing of material supplied by the client, the contractor guarantees the soundness of the processing carried out for the period referred to in paragraph 1.
If it appears that processing has not been carried out properly, the contractor will choose whether to:
– perform the processing again. In that case, the client must supply new material at its own expense;
– repair the defect. In that case, the client must return the material to the contractor carriage paid;
– credit the client for a proportional part of the invoice.

14.4. If the agreed performance consists of the delivery of an item, the contractor guarantees the soundness of the item delivered for the period referred to in paragraph 1.

If it turns out that the delivery was not proper, the item must be returned to the contractor carriage paid. The contractor will then choose whether to:
– repair the item;
– replace the item;
– credit the client for a proportionate part of the invoice.

14.5. If the agreed performance consists (partly) of the installation and/or assembly of a delivered item, the contractor guarantees the soundness of the installation and/or assembly for the period referred to in paragraph 1.

If it appears that the installation and/or assembly has not been carried out properly, the contractor will repair this. Any travel and accommodation expenses incurred will be borne by the client.

14.6. For those parts for which the client and contractor have expressly agreed in writing, the factory warranty applies. If the client has had the opportunity to take note of the contents of the factory warranty, this will replace the warranty under this article.

14.7. The Client must in all cases give the Contractor the opportunity to remedy any defect and/or to re-perform the processing.

14.8. The Client may only invoke the warranty after he has fulfilled all his obligations towards the Contractor.

14.9.a. No warranty is given if defects are the result of:
– normal wear and tear;
– improper use;
– no or incorrect maintenance;
– installation, assembly, modification or repair by the client or by third parties.
b. No warranty is given on delivered items that were not new at the time of delivery or on items that were prescribed by the client or supplied by or on behalf of the client;
c. No warranty is given on the inspection and/or repair of items of the client.

The Client can no longer invoke a defect in the performance if he has not made a written complaint to the Contractor within fourteen days after he discovered the defect or should reasonably have discovered it.

If items have not been collected after the delivery time has expired, they will remain available to the client. Uncollected items will be stored at the expense and risk of the client. The contractor may always make use of the authority under article 6:90 BW.

17.1. Payment shall be made at the place of business of the contractor or into an account designated by the contractor.

17.2. Unless otherwise agreed, payment shall be made as follows:
a. in cash for counter sales;
b. in the event of payment in installments:
– 40% of the total price upon order;
– 50% of the total price after delivery of the material or, if delivery of material is not included in the order, after commencement of the work;
– 10% of the total price upon delivery;
c. in all other cases within thirty days after the invoice date.

17.3. Regardless of the agreed payment conditions, the client is obliged to provide sufficient security for payment at the request of the contractor. If the client does not comply with this within the set term, he will immediately be in default. In that case, the contractor has the right to terminate the agreement and recover his damages from the client.

17.4. The right of the client to offset its claims against the contractor is excluded, unless the contractor is declared bankrupt or the judicial debt restructuring applies to the contractor.

17.5. The entire claim for payment is immediately due and payable if:
a. a payment term has been exceeded;
b. the client has gone bankrupt or applies for a suspension of payments;
c. the client’s assets or claims are seized;
d. the client (company) is dissolved or liquidated;
e. the client (natural person) requests to be admitted to judicial debt restructuring, is placed under guardianship or dies.

17.6. If payment has not been made within the agreed payment term, the client shall immediately owe interest to the contractor. The interest amounts to 12% per year, but is equal to the statutory interest if this is higher. When calculating interest, a part of a month is considered a full month.

17.7. If payment has not been made within the agreed payment term, the client owes the contractor all extrajudicial costs with a minimum of € 75.00.

The costs are calculated on the basis of the following table:
over the first € 3,000,= 15%
over the excess up to € 6,000,= 10%
over the excess up to € 15,000,= 8%
over the excess up to € 60,000,= 5%
over the excess from € 60,000,= 3%

If the actual extrajudicial costs incurred are higher than those resulting from the above calculation, the actual costs incurred are due.

17.8. If the Contractor is proven right in legal proceedings, all costs incurred by the Contractor in connection with these proceedings shall be borne by the Client.

18.1. After delivery, the contractor shall remain the owner of delivered goods as long as the client:
a. fails or will fail to fulfil its obligations under this agreement or other similar agreements;
b. does not pay or will not pay for work performed or yet to be performed under such agreements;
c. has not paid claims arising from the failure to fulfil the above-mentioned agreements, such as damages, fines, interest and costs.

18.2. As long as the delivered goods are subject to retention of title, the client may not encumber them outside the normal course of his business.

18.3. After the contractor has invoked his retention of title, he may retrieve the delivered goods. The client shall allow the contractor to enter the place where these goods are located.

18.4. If the contractor cannot invoke his retention of title because the delivered goods have been mixed, deformed or copied, the client is obliged to pledge the newly formed goods to the contractor.

If the client wishes to terminate the agreement without the contractor being in default and the contractor agrees to this, the agreement will be terminated by mutual consent. In that case, the contractor is entitled to compensation for all financial loss such as losses suffered, lost profits and costs incurred.

20.1. Dutch law applies.

20.2. The Vienna Sales Convention (CISG) shall not apply, nor shall any other international regulation the exclusion of which is permitted.

20.3. Only the Dutch civil court that has jurisdiction in the place of establishment of the contractor shall take cognizance of disputes, unless this is contrary to mandatory law. The contractor may deviate from this jurisdiction rule and apply the statutory jurisdiction rules.

20.4. The parties may agree on another form of dispute resolution such as arbitration or mediation.